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Liberal Constitutionalism, Marriage, and Sexual Orientation

A Contemporary Case for Dis-Establishment

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Gordon Albert Babst

Liberal Constitutionalism, Marriage, and Sexual Orientation: A Contemporary Case for Dis-Establishment uses constitutional theory and political philosophy to shed light on an elusive feature of American jurisprudence: the establishment of a sectarian preference in the law to the detriment of American citizens who happen to be gay or lesbian and who wish to exercise their fundamental right to marry. Reviewing aspects of liberal-democratic theory, marriage law, and pertinent analogies that deal with the right to marry, Gordon Albert Babst presents the notion of the «shadow establishment,» which makes the best sense of a constitutional affirmation of bias against same-sex marriage and gay persons in the law.